BY AD v. K.JAYAKUMAR

BY ADVS. SR.GOVERNMENT PLEADER SHRI A.J.VARGHESE SR.GP SMT.VINITHA B. SRI.S.P.ARAVINDAKSHAN PILLAY S.P.ARAVINDAKSHAN PILLAY SMT.P.K.SANTHAMMA S.A.ANAND L.ANNAPOORNA K.A.BALAN PETER JOSE CHRISTO N.SANTHA V.VARGHESE K.N.REMYA THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON

4.12.2023, ALONG WITH OP(KAT).136/2020, THE COURT ON 5/1/2024 DELIVERED THE FOLLOWING: OP(KAT) 40/2016 & 136/2020 -:3:- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 5TH DAY OF JANUARY 2024 / 15TH POUSHA, 1945 OP(KAT) NO. 136 OF 2020 AGAINST THE ORDER OA 2228/2012 DATED 4/7/2019 OF KAT, THIRUVANANTHAPURAM PETITIONER/S: 1 2 R.SOMASEKHARA KURUP, AGED 64 YEARS S/O. DAMODARAN NAIR, PANGALATH HOUSE, 258, INDIRA GANDHI NAGAR, THUTHIYOOR, CSEZ P.O., KOCHI-682037. P.SREEDEVI , W/O LATE R.SOMASEKHARA KURUP, PANGALATH HOUSE 258, INDIRA GANDHI NAGAR, THUTHIYOOR, CSEZ P.O.,KOCHI-682037 . * IS IMPLEADED AS ADDITIONAL 2ND PETITIONER AS PER ORDER DATED 16/6/23 IN IA 2/23 IN OP (KAT) 136/2020. BY ADVS. P.SANTHOSH KUMAR (PANAMPALLI NAGAR) K.P.CHANDRASEKHAR LUIZ GODWIN D COUTH V.ANANDA SHENOY RESPONDENT/S: 1 2 3 THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004. THE ACCOUNTANT GENERAL (A AND E) KERALA, THIRUVANANTHAPURAM-695001. THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 04.12.2023, ALONG WITH OP(KAT).40/2016, THE COURT ON 5/1/2024 DELIVERED THE FOLLOWING: OP(KAT) 40/2016 & 136/2020 -:4:- A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ----------------------------------------- O.P.(KAT).Nos.40/2016 and 136/2020 ----------------------------------------- Dated this the 5th day of January, 2024 J U D G M E N T A.Muhamed Mustaque, J. These cases raise a common issue. In these separate original petitions, the petitioners challenge an order of the Kerala Administrative Tribunal (KAT), where the petitioners were the applicants.

2. The petitioners admittedly retired employees. The petitioner in O.P.(KAT).No.136/2020 died pending original petition. His legal heir is prosecuting the original petition.

3. The issue is in regard to the promotion given to the seniors as Financial Assistant and Finance Officer in OP(KAT) 40/2016 & 136/2020 -:5:- the finance establishment of the Government of Kerala who cleared departmental tests subsequent to the petitioners.

4. The feeder category to the post of Financial Assistant is Divisional Accountant. As per the Special Rules, the Financial Assistants and Financial Officers in various departments of the State of Kerala are promoted from Divisional Accountants of the Kerala General Service from a select list or by recruitment by transfer. The select list is prepared by the Departmental Promotion Committee on the basis of merit and ability. The grievance of the petitioners was that unqualified seniors in the cadre of Divisional Accountants have been promoted superseding them. In order to be promoted as Divisional Accountants, it is necessary that a test called Divisional Accountants’ Test examination is conducted by Kerala Public Service Commission and is cleared. This test has to be passed within the prescribed period of probation. The grievance raised by the petitioners was that the party respondents did not clear the test within the time at one stretch and they were OP(KAT) 40/2016 & 136/2020 -:6:- given subsequent promotion overlooking the fact that the petitioners had cleared the test much ahead than them.

5. The Tribunal noted that the party respondents were given exemption clearing the obligatory test at one stretch by G.O.(Rt).No.3795/97/Fin., dated 26/6/1997 and they were allowed to clear compartmentally. The period of probation was also extended. That exemption was not under challenge. The Tribunal further noted that the party respondents were qualified as on the date of occurrence of vacancies and, therefore, interfere matter.

6. The petitioner in O.P.(KAT) No.40/2016 made an attempt to amend the original petition raising a challenge as against Exts.P9 and P10. We did not allow the amendment but allowed to receive the documents on record. It is pertinent to note that the petitioners were given time bound higher grade and that was cancelled. The petitioners’ case is that the cancellation was without their knowledge and fraud was committed on them. According to them, if higher grade promotion was given effect, they would have continued OP(KAT) 40/2016 & 136/2020 -:7:- to remain as seniors. It is to be noted that the cancellation was as early as in the year 2001. The petitioners’ case is that they came to know about this 56+during the hearing before the tribunal. We must say that the petitioners cannot pretend to be ignorant and raise a challenge against the proceedings which were concluded two decades ago. Further, we declined the prayer for amendment for the reason that in a proceedings under Article 227 this court cannot permit a new challenge.

7. In the matter of promotion, one may have a right for consideration, but that consideration would be in accordance with the extant rules. If the Government being the employer, applied a rule and promoted a qualified candidate, the Court cannot find fault with such an approach. Judicial review of the decision of the Government is limited as there is no arbitrariness in such an approach. The petitioners might have been qualified in a department test ahead of their seniors but that itself is not decisive for claiming higher post or higher grade. Mere OP(KAT) 40/2016 & 136/2020 -:8:- passing of the test cannot confer a right to march over the seniors, if the seniors are qualified as on the date of consideration for promotion. As we already noted, the exemption granted to the party respondents were not under challenge. There is no irregularity in making further promotions. There is no merit in this matter. The original petitions are dismissed. Sd/- A.MUHAMED MUSTAQUE, JUDGE Sd/- SHOBA ANNAMMA EAPEN, JUDGE OP(KAT) 40/2016 & 136/2020 -:9:- APPENDIX OF OP(KAT) 136/2020 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P1(A1) EXHIBIT P1(A2) EXHIBIT P1(A3) EXHIBIT P1(A4) EXHIBIT P1(A5) EXHIBIT P1(A6) EXHIBIT P1(A7) EXHIBIT P1(A8) EXHIBIT P1(A9) EXHIBIT P1(A10) EXHIBIT P1(A11) EXHIBIT P1(A12) EXHIBIT P1(A13) EXHIBIT P1(A14) A TRUE COPY OF THE OA NO.2238 OF 2012 WITH ITS ANNEXURES. TRUE COPY OF GO(RT) NO.3795/97/FIN. DATED 26.6.1997 OF THE IST RESPONDENT. TRUE COPY OF GO(MS) NO.928/2000/FIN. DATED 1.6.2000 OF THE IST RESPONDENT. TRUE COPY OF THE COMPLAINT FILED BY THE APPLICANT TO THE IST RESPONDENT. TRUE COPY OF LR.NO.65826/ESTT.B2/99/FIN. DATED 8.12.2000 OF THE IST RESPONDENT. TRUE COPY OF GOVT. LR.NO.19693/ESTT.B2/2000/FIN. DATED 13.3.2000. TRUE COPY OF ORDER DATED 22.1.2001 OF THE HON’BLE HIGH COURT OF KERALA IN CMP NO.3652/2001 IN OP NO.2172/2001. TRUE COPY OF GO(RT) NO.144/2000/FIN. DATED 5.1.2001 ISSUED BY THE IST RESPONDENT. TRUE COPY OF CIRCLE NO.58/PRC- B3/88(226)/FIN DATED 19.7.1988 ISSUED BY THE IST RESPONDENT. TRUE COPY OF SPECIAL RULES OF FINANCIAS ASSISTANTS AND FINANCE OFFICERS PUBLISHED AS SRO NO.788/91. TRUE COPY OF THE REPRESENTATION DATED 5.6.2006 OF THE APPLICANT BEFORE THE IST RESPONDENT. TRUE COPY OF AMENDED SPECIAL RULES OF FINANCIAS ASSISTANTS AND FINANCE OFFICERS PUBLISHED AS SRO NO.351/2002. TRUE COPY OF GOVT. LR.NO.59901/ESTT.BE/2006/FIN. DATED 26.8.2006. TRUE COPY OF GOVT. LR.NO.66741/ESTT.B3/2006/FIN. DATED 13.9.2006. TRUE COPY OF I.A.NO.13906/2008 IN OP NO.32358/2006 FILED BY THE APPLICANT BEFORE THE HON’BLE HIGH COURT OF KERALA. OP(KAT) 40/2016 & 136/2020 -:10:- EXHIBIT P1(A15) EXHIBIT P1(A16) EXHIBIT P1(A17) EXHIBIT P1(A18) EXHIBIT P1(A19) EXHIBIT P2 EXHIBIT P3 Exhibit P3(A20) EXHIBIT P4 Exhibit P5 TRUE COPY OF ORDER DATED 20.6.2012 OF THIS HON’TRIBUNAL IN TA NO.619/2012. TRUE COPY OF VERIFICATION REPORT DATED 17.2.2011 OF THE 3RD RESPONDENT. TRUE COPY OF VERIFICATION REPORT DATED 12.4.2012 OF THE 3RD RESPONDENT. TRUE COPY OF REPRESENTATION DATED 10.4.2012 OF THE APPLICANT TO THE 3RD RESPONDENT. TRUE COPY OF LR.NO.P-4/2/1010106728/67 DATED 11.5.2012 OF THE 3RD RESPONDENT TO THE APPLICANT. A TRUE COPY OF THE REPLY STATEMENT OF THE HON’BLE KAT. A TRUE COPY OF THE REJOINDER OF THE HON’BLE KAT. A TRUE COPY OF G.O.(P) 380/2009/FIN.DATED 10.09.2009. A TRUE COPY OF THE ORDER DATED 4.7.2019 OF THE HON’BLE KAT, ERNAKULAM. A TRUE COPY OF THE RULES LAID DOWN IN APPENDIX II OF KERALA PW ACCOUNT CODE. OP(KAT) 40/2016 & 136/2020 -:11:- APPENDIX OF OP(KAT) 40/2016 PETITIONER ANNEXURES ANNEXURE A2 ANNEXURE A3 ANNEXURE A4 ANNEXURE A5 ANNEXURE A6 ANNEXURE A7 EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P5 (a) EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT R1(A) COPY OF THE INTERIM ORDER DATED 15.10.2005. COPY OF THE REVIEW PETITION 126/06 ORDER DATED 31.10.2006. COPY OF THE COUNTER FILED BY THE RESPONDENT NO.1 COPY OF THE COUNTER FILED BY THE RESPONDENT NO.3 COPY OF THE COUNTER FILED BY THE RESPONDENT NO.2,4,6 AND 7 COPY OF THE ORDER DATED 7.11.2012. TRUE COY OF THE G.O.(P) NO.1562/9927 FIN. DATED 12.7.1999. TRUE COPY OF THE PROMOTION ORDER G.O.(RT) NO.144/2000/FIN. DATED 5.1.2001. TRUE COPY OF THE CIRCULAR NO.58/PRC-BE/88’ 226) FIN. DATED 19.7.1988. TRUE COPY OF THE LETTER NO.73382/ESTT.B2/2003/FIN. DATED 17.9.2003 ISSUED BY THE PRL. SECRETARY FINANCE DEPAT TO THE EXE.ENGINER, ALAPPUZHA. TRUE COPY OF THE G.O.(RT) NO.1221/2000/FIN. DATED 29.2.2000. TRUE COPY OF THE ORDER G.O.(RT) NO.3795/97/FIN. DATED 26.6.1997. TRUE COPY OF THE G.O.(RT) NO.6387/2004 FIN. DATED 25.9.2004. TRUE COPY OF THE ORDERS G.O.(RT) NO.3641/2005 FIN. DATED 3.5.2005, G.O.(RT) NO.5609/2001/FIN. DATED 3.5.2005, G.O.(RT) NO.5609/2001/FIN. DATED 30.10.2001 & G.O.(RT) NO.263/2003/FIN. DATED 13.1.2003. SERIES TRUE COPY OF THE REPRESENTTIONS SUBMITTED BY THE PETITIONERS DATED 25.7.2005, 8.8.2005, 27.7.2005, AND 8.8.2005. COPY OF THE SPECIAL RULES OF FINANCIAL AND FINANCE OFFICERS IN THE VARIOUS DEPARTMENTS. OP(KAT) 40/2016 & 136/2020 -:12:- EXHIBIT R1(B) EXHIBIT R1(C) EXHIBIT R4(A) EXHIBIT R4(B) EXHIBIT R4(C) EXHIBIT R4(D) EXHIBIT R4(E) EXHIBIT R4(F) EXHIBIT R4(G) RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF G.O.(P) NO.39/91/P&ARD DATED 7.12.1991. TRUE COPY OF CIRCULAR NO.31/PRC.B2/02/- FIN. DATED 17.5.2002. COPY OF APPOINTMENT OF DIVISIONAL ACCOUNTANTS SPECIAL RULES, G.O.(P) NO.464 DATED 28.11.66, TRIVANDRUM. COPY OF THE G.O.(P) NO.327/91/FIN. TRIVANDRUM DATED 1.4.1991 SELECT LIST OF RECRUITMENT BY TRANSFER FROM MEMBERS THROUGH P.S.C. COPY OF DRAFT LIST OF DIVISIONAL ACCOUNTANTS PUBLISHED AS PER G.O.(M.S)NO.928/00/FIN. DATED 1.6.2000. COPY OF FINAL SENIORITY LIST OF DIVISIONAL ACCOUNTANTS PUBLISHED BY THE GOVERNMENT AS PER G.O.(P) NO.6353/00/FIN. DATED 15.11.00. COPY OF A PROVISIONAL LIST, INVITING COMPLAINT/OBJECTION IS FINALIZING THE SAME LIST G.O.(RT) NO.782/02/FIN. DATED 1.2.02, A TRUE COPY OF WHICH IS PRODUCED HEREWITH AND MARKED AS R4(e) IS ALSO. COPY OF THE RULES FOR INITIAL RECRUITMENT AND TRAINING OF DIVISIONAL ACCOUNTANTS. COPY OF G.O.(RT) NO.733/01/FIN. DATED 3.2.01. TRUE COPY OF G.O.(MS) NO.99/2011/FIN DATED 1.3.2011. PETITIONER ANNEXURES ANNEXURE A1 ANNEXURE A8 EXHIBIT P9 EXHIBIT P10 EXHIBIT P10 (A) COPY OF THE T.A.1102/2012 WITH EXHIBITS. GO MS NO.99/2011/FIN, DT.1/3/2011 TRUE COPY OF THE JUDGMENT DATED 7/11/2012 OF KAT TVPM IN TA 4840/2012 WHERE THE APPLICANTS HEREIN ARE THE APPLICANTS IN TA COPY OF LETTER NO.19693/EST.B2/2000/FIN DT.13/3/2000 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE) CLEAR TYPED COPY OF EXT.P10